Martin v R [1927] HCA 41; (1927) 40 CLR 162 (25 October 1927)

HIGH COURT OF AUSTRALIA

Martin Petitioner, Appellant; and The King Respondent, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

25 October 1927

Isaacs A.C.J., Gavan Duffy, Powers, Rich and Starke JJ.

Sir Edward Mitchell K.C. (with him Phillips), for the appellant.

C. Gavan Duffy and Clayton Davis, for the respondent,

The following written judgments were delivered:—

Oct. 25

Isaacs A.C.J. and

Powers J.

The question is whether the appellant's pension under sec. 22 of the Police Regulation Act 1915 is to be computed on the basis of £712 or £612 as "the pay received by him during the period of twelve consecutive months immediately preceding the date of his retirement." The appellant, when he retired in 1925, was a Superintendent receiving, in addition to £612 admitted salary, a further sum of £100 a year as Inspector of Licensing Districts under the Licensing Act 1915. The ultimate point for determination, therefore, is whether that sum of £100 was part of his "pay" within the meaning of sec. 22 of the Police Regulation Act.

Mann J. answered that question in the negative; and, although Sir Edward Mitchell presented the matter in the most favourable light possible for the appellant, we cannot doubt the decision of the learned primary Judge was right. Mann J. held (inter alia) that the word "pay" in sec. 22 of the Police Regulation Act is capable of including remuneration for services as Licensing Inspector if in fact it is given as extra police pay added by way of increase to his ordinary police salary. On examination of the circumstances he concluded that the £100 allowance was not so given. We agree with the learned Judge's method of approaching this question and with the result, but with some slight change in the factors.

There can be no doubt that the position of Licensing Inspector is in itself a distinct office, created by the Licensing Act. The appointee must, by sec. 80 of that Act, be an officer of police not below the rank of sub-inspector. But that is only by way of qualification. It is clear that the Legislature believed that it would be highly advantageous, and at the same time economical, to restrict the occupancy of the new office by the condition mentioned. But the two offices were not merged. Special and separate provision is made for removing a Licensing Inspector at will and appointing another officer in his place. No direct legislative provision is made for remunerating Licensing Inspectors as such, and perhaps it was thought their additional duties might not require additional remuneration. But it has been found that their duties deserve extra reward, and so £100 a year is paid as equitable compensation for these services. As we view the matter, everything depends on the way in which that remuneration is granted. If it is granted so as to be an accretion to ordinary police pay, the appellant should succeed. If police pay is left altogether clear of the licensing remuneration, the latter being quite separate and independent, he should fail.

The administrative grant of the £100 began with a recommendation by the then Chief Commissioner on 5th September 1923, which remained undealt with until renewed on 6th December 1923. Its terms are very important in view of the way in which Parliament dealt with the matter. It was a recommendation (1) of an increase to £100 of the then allowance of £50 per annum to Licensing Inspectors; (2) of a similar increase to two Superintendents, namely, to those in charge of the Criminal Investigation Branch and the Melbourne District; (3) of a similar increase to the Officer in Charge of No. 1 Division. The latter memorandum was on 8th December 1923 minuted by the Chief Secretary as follows: "Forwarded to Treasurer for early favourable consideration." On 12th December 1923 the Treasurer minuted it "Pay." The document was returned to the Chief Secretary's Department on the same date. This, which needed legislative confirmation as to police pay, was carried out in the Appropriation Act, No. 3389, in Part I. of the Second Schedule, Division 29, Sub-division 4, except as to the Licensing Inspectors. The latter payment was not out of the Consolidated Revenue, and was left to be borne by the Licensing Fund under the Act. In the same Appropriation Act, Part II. of the Second Schedule, Division 29, Sub-division 5, period 1924-1925, appears to us to be decisive of the present case. It is headed:—"Salaries and Wages—General Police." It proceeds as follows:—"11 Superintendents, including allowances to Officers in Charge of Melbourne District and Criminal Investigation Branch of £100 per annum ... £5,700. 10 Inspectors, including allowance of £100 per annum to Senior Officer, Russell-Street Station ... £4,300. 17 Sub-inspectors ... £6,630." Then follow Sergeants and Constables, and finally, "Extra pay to members of the Force on plain-clothes and special duties." The last item is explained in a foot-note at the end of Division 29, and has no relation to this case. The significance of the parliamentary appropriation—which is the only legal provision for police pay—is this: By Order in Council dated 13th December 1923 the yearly rates of pay are administratively stated to be £390 for Sub-inspectors, £420 for Inspectors, and £500 for Superintendents. Now, if those rates are multiplied by the respective number of officers, the calculation shows that Parliament has, with respect to the extra allowances for the two Superintendents and the Officer in Charge Russell Street, declared them to be part of their "Salaries and Wages," whilst the Licensing Act allowances are not so declared. It is therefore clear that not only is the office of Licensing Inspector distinct and separate, but that Parliament has kept the remuneration of that office altogether clear and separate from the Police Salaries and Wages, and therefore outside the scope of sec. 22 of the Police Regulation Act. That is the more significant when we find in the same Appropriation Act an item of £6,870 to be repaid from the Licensing Fund, being the pay of members of the force wholly employed in Licensing Act duty, an item not referable to Licensing Inspectors' duty. If, however, Parliament, in passing Subdivision 5 of Division 29 in the Appropriation Act, had under the general heading "Salaries and Wages—General Police" chosen to include in the item "Superintendents" an "allowance of £100 per annum to officers acting as Inspectors of Licensing Districts," we cannot imagine any reason why that allowance should not have been taken into account in computing pension. "Salary or Wages" is the expression in sec. 29 of the Police Regulation Act, and is manifestly at least included in the "pay" mentioned in sec. 22. In that case it would have been no more than an accretion to police pay, and part of it, making it so much larger. The Licensing Act in that event would not of itself, in our opinion, have interposed any legal bar to that accretion. That course, however, was not taken. We are in accord with Mann J. that the matter cannot be disposed of without examining the mode and circumstances of making the allowance, as elements in determining its character, and having done so, we think, having regard to the mode and circumstances appearing in this case, that the allowance does not fall within sec. 22 of the Police Regulation Act 1915.

For these reasons we are of opinion the appeal should be dismissed and the judgment of Mann J. affirmed.

Gavan Duffy, Rich and Starke JJ.

The appellant is entitled to a pension calculated on the pay received by him as a member of the police force of Victoria during the period of twelve consecutive months immediately preceding the date of his retirement from the force (Police Regulation Act 1915, sec. 22). In addition to his ordinary pay mentioned in sec. 13, the appellant received an allowance of £100 per annum for certain duties which he performed as an Inspector of Licensing Districts under the Licensing Act 1915. Mann J. has held that this allowance of £100 per annum cannot be included in the appellant's pay as a member of the police force for the purpose of calculating his pension under sec. 22. Pay, no doubt, includes the current rate of pay mentioned in sec. 13, the allowances mentioned in sec. 29, and also any other payments made to an officer of police in respect of the performance of his duties as such. The Licensing Act, sec. 80, empowers the Governor in Council to appoint an officer of police not below the rank of sub-inspector as an Inspector of Licensing Districts and to remove any person so appointed. The appellant was appointed pursuant to this power and his duties and authorities are regulated by the Act (cf. sec. 81). Moreover, his allowance of £100 has been paid out of the Licensing Fund established under the Licensing Act (see secs. 312, 313) and has never been thrown upon the Consolidated Revenue. Under these circumstances the learned Judge concluded rightly, in our opinion, that the allowance was not paid to the appellant in respect of the performance of duties as an officer of the police force. Consequently the appeal ought to be dismissed.

Appeal dismissed with costs.

Solicitors for the appellant, P. J. Ridgeway & Schilling.

Solicitor for the respondent, F. G. Menzies, Crown Solicitor for Victoria.